Some of the Law Lords take occasion to approve, also, the doctrine of British Mut. Banking Co. v. Charnwood, etc., Co., 18 Q. B. D. 714, in which it is decided that a principal is not liable for the misrepresentations of his agent unless such misrepresentations were made for the benefit of the principal. This doctrine has been generally accepted as the English law, and disapproval of it was hardly to be expected. Yet it is believed that it is unsound, for, as already suggested, the nature of the act should alone be regarded in determining whether it was done in the course of employment. A servant about his master's business acts for his own benefit and not for the benefit of his master when he engages in a conversation with a friend, or indulges in a nap; yet if injury results to a third party from his inattention to duty, the master would be liable to respond in damages. There seems to be no reason for applying a different rule when the tort which the servant commits is wilful rather than negligent. The American courts, in determining a principal's liability, do not inquire whether the agent was acting for his principal's benefit either in cases of intentional or unintentional tort.

RECENT CASES.

AGENCY-WILFUL MISREPRESENTATIONS BY AGENT - PRINCIPAL'S LIABILITY TO THIRD PERSONS. The secretary of a company, to accommodate a friend, certified a transfer of shares, though the certificates were not lodged in the company's office as represented. Held, that the company is not liable to the transferee for the misrepresentation of its secretary. George Whitechurch, Ltd. v. Cavanagh, [1902] A. C. 117. See NOTES, p. 61.

BANKRUPTCY

DEBTS NOT DISCHARGEABLE-JUDGMENT FOR LIBEL.- Held, that libel is a "wilful and malicious injury to the person " within the meaning of c. 3, § 17 of the Bankruptcy Act of 1898, and therefore that proceedings under the Act do not discharge a judgment obtained in an action for libel. McDonald v. Brown, 51 Atl. Rep. 213 (R. I.).

Proof of actual malice is not necessary to maintain an action for libel. Ullrich v. N. Y. Press Co. (Sup. Ct., Tr. T.), 23 Misc. (N. Y.) 168; ODGERS, LIBEL AND SLAN DER, 2d ed. 269. It is, however, generally held that so-called malice in law, or absence of legal excuse, is an essential element. Bromage v. Prosser, 4 B. & C. 247; Barr v. Moore, 87 Pa. St. 385. The court in the principal case applied to the word malicious" in the Act this fictitious meaning. But, since the section in question in effect imposes a penalty, it would seem more reasonable to hold that Congress intended to use the word in its natural sense, requiring a bad animus to be shown. This seems to be the first case of a judgment for libel arising under this section. The only other cases to be found in which this clause was interpreted are those of judgments for seduction and criminal conversation. The court's construction of "malicious " finds support in these cases. In re Maples, 105 Fed. Rep. 919; Colwell v. Tinker, 169 N. Y. 531. As there may be a negligent publication, the decision, in holding that a libel is necessarily wilful, seems further open to criticism. See Vitz Etelly v. Mundie's Select Library, Ltd., [1900] Q. B. 170. Libel was properly regarded as an "injury to the person within the meaning of the Act. See In re Freche, 109 Fed. Rep. 620; Colwell v. Tinker, supra.

BANKRUPTCY - PETITION BY COMMITTEE OF A LUNATIC. A petition in bankruptcy was filed by the committee of a lunatic. Held, that the court had no jurisdic tion to entertain such a petition. In the matter of Eisenberg, 27 N. Y. L. J 1909 (Sept. 29, 1902). See Notes, p. 56.

CONFLICT OF LAWS - INTERPRETATION OF WILL OF PERSONALTY - LAW OF TESTATOR'S DOMICILE. - A testator domiciled in England bequeathed money to the next of kin of A, domiciled in Germany. The next of kin according to the German law was A's niece, according to the English law his step-sister. Held, that the will must be interpreted according to English law In re Fergusson's Will, [1902] 1 Ch. 483 (Eng.).

A will of personalty is in general to be interpreted according to the law of the testator's domicile at the time of his death. See DICEY, CONF. OF LAWS, 695. Consequently technical legal terms such as "next of kin "are given the meaning attached to them in the law of that jurisdiction. Knights Templars, etc, Ass'n v. Greene, 79 Fed. Rep. 460; cf. Staigg v. Atkinson, 144 Mass. 564. The application of this rule to the principal case leads to the curious result that the members of a German family domiciled in Germany are determined according to English law. The rule is generally said to be based on the presumption that the testator was familiar with the technical meaning of the language in his domicile, and intended that meaning to be applied to it This is obviously fictitious. The rule, however, is well established, and, perhaps, works no hardship in the general case. It has the merit of simplifying interpretation; but when, as in the principal case, the language may well have either one of two meanings, the rule becomes arbitrary, and may often defeat the testator's intention.

CONFLICT OF LAWS-JURISDICTION - RIGHT ACQUIRED UNDER FOREIGN STATUTE. Under the Mexican statute giving an action for death by wrongful act, the liability of the defendant is limited to furnishing support to the legal dependents of the deceased during the periods of time that support would have been due from him, payments being made in monthly instalments. Action was brought under this statute by the proper parties, in the United States Circuit Court. Held, that the court should decline jurisdiction. Mexican, etc., R. R. Co. v. Slater, 115 Fed. Rep. 593 (C. C. A., Eighth Circ.).

On principle it should be immaterial whether foreign-acquired rights arise under statutes or at common law. See Dennick v. Central R. R., etc., 103 U. S. 11. In practice, however, a distinction is sometimes made. All courts seem to agree in refusing to enforce penal obligations, or claims whose enforcement would violate public policy. O'Reilly v. N. Y., etc., R. R., 16 R. I. 388; The Kensington, 183 U. S. 263. It ought equally to be recognized as immaterial whether there would have been any cause of action under the local law, since it is the foreign law that determines the right in question Such is the general rule as to common law rights. Greenwood v. Curtis, 6 Mass 358. Where, however, the right accrued under a foreign statute, some courts make the existence of a similar local statute essential to give jurisdiction. St. Louis, etc., Ry. v. McCormick, 71 Tex. 660; Anderson v. Milwaukee. etc., Ry. Co., 37 Wis 321; The Halley, L. R. 2 P. C. 193. But the existence of such a statute seems more properly held unnecessary. Herrick v. Minneapolis, etc., Ky. Co., 31 Minn. 11. Moreover dissimilarity should be immaterial unless so great as to conflict with public policy. See Evey v. Mexican, etc., Ry. Co., 81 Fed. Rep. 294. A foreign statute may, however, give a right of so peculiar a character that the court cannot, under its procedure, do substantial justice between the parties. It may then properly decline jurisdiction. See Higgins v. Central, etc., Ry. Co., 155 Mass. 176. On this ground the principal case may be rested.

CONFLICT OF LAWS-TAXATION OF NON-RESIDENT'S CHOSES IN ACTION. — A New Jersey corporation had a permanent place of business in Georgia, where it sold goods regularly for cash and on short credit, through an agent. The money collected was remitted from time to time to a New York office. Held, that the cash on hand and solvent accounts are taxable by the city in which the branch is located as the property of a non-resident. Armour Packing Co. v. Mayor, etc., of Savannah, 41 S. E. Rep. 237 (Ga.).

Personal property of a non-resident is liable to taxation where located, even though taxed also at the owner's domicile. Coe v. Errol, 116 U. S. 517. Obviously, therefore, the money collected was properly taxed; and the credits are within the same rule if it can be said that they exist within the city. There are various views as to the situs of a chose in action. For example, the courts declare that it is at the owner's domicile, that it follows the debtor, and that a chose in action has no situs. Louisville & N. Ry. Co. v. Nash, 118 Ala. 477; Chicago, etc., Ry. Co. v. Sturm, 174 U. S. 710; Peckham, J., in Guillander v. Howell, 35 N. Y. 657, 661. It is hardly too much to say that the policy and convenience in each class of cases determine whether a chose in action shall be considered for the purposes involved, as existing in a particular place. For purposes of taxation a credit is very generally regarded as property at the place where it is held, and claims of a non-resident creditor, in an agent's hands, are taxable at the agent's domicile. People v. Trustees of Ogdensburg, 48 N. Y. 390, 397; Catlin v. Hull, 21 Vt. 152: People v. Barker, 23 N. Y. App. Div. 524; contra, City of Vicksburg v. Armour Packing Co., 24 S. W. Rep. 224 (Miss.). Consequently the credits also were properly taxed.

CONFLICT OF LAWS VALIDITY OF CONTRACTS LAW OF THE INTENTION OF PARTIES. The plaintiff, living in the Island of Jersey, insured a stamp collection

with the Sun Fire Office through its agent in Jersey, the policy containing an arbitration clause referring to the English Arbitration Act. A loss having occurred and arbitration failing, the plaintiff brought suit against the agent in Jersey. Held, that giving effect to the intention of the parties, the contract was to be governed by the law of England. Spurrier v. La Cloche, [1902] A. C. 446 (Eng., P. C.). See NOTES, p. 58.

CONSTITUTIONAL LAW-RESTRICTIONS ON FREEDOM OF THE PRESS. The defendant published an article advocating wholesale murder of all officers of the government. He was convicted under section 675 of the New York Code, providing that “a person who wilfully and wrongfully commits any act which seriously... endangers the public peace... is guilty of a misdemeanor." Held, that conviction under this provision does not infringe the constitutional right of freedom of the press. People v. Most, 171 N. Y. 423. See NOTES, p. 55.

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CLASSIFICATION OF CITIES.

CONSTITUTIONAL LAW SPECIAL LEGISLATION A municipal board of control held office under a statute applying only to "cities of the second grade of the first class." Only one city was included in the class. Held, that since "the body of legislation relating to this subject shows the legislative intent to substitute isolation for classification," the law is special and invalid. State v. Beacom, 64 N. E. Rep. 427 (Oh.). See NOTES, p. 59.

CONTRACTS IMPOSSIBILITY AS AN EXCUSE-CHANGE OF FOREIGN LAW.The defendant contracted at New York to furnish laborers for transportation from Barbadoes. A subsequent colonial ordinance forbade further embarkation of such laborers. Held, that this was no excuse for non-performance of the contract. Tweedie Trading Co. v. McDonald Co., 114 Fed. Rep. 985 (Dist. Ct., S. D., New York).

A change of domestic law is universally held to be an excuse for the non-performance of a contract. Baily v. De Créspigny, L. R. 4 Q. B. D. 180; Exposito v. Bowden, 7 E. & B. 763; Cordes v. Miller, 39 Mich. 581. This rule is necessary to avoid the manifest injustice of forcing a defendant to pay damages for not doing an illegal act. The law ought not at the same time to enforce and forbid. The same necessity does not exist, however, when the performance has become contrary to foreign law; for a foreign law is a fact, beyond the control of the state, which may render the contract impossible but not illegal. Accordingly the English Courts have consistently held that impossibility resulting from the intervention of foreign law does not excuse. Blight v. Page, 3 Bos. & Pull. 295, note; Barker v. Hodgson, 3 M. & S. 267; Jacobs v. Crédit Lyonnais, 12 Q. B. D. 589. This case is apparently the first in this country in which the point was involved, and, in following the English rule, it would seem to oppose the present commendable tendency of some American courts to extend the scope of impossibility, as an excuse. See Lovering v. Buck Mountain Co., 54 Pa. St. 291; Buffalo, etc., Co. v. Bellevue, etc., Co., 165 N. Y. 247. See 15 HARV. L. REV. 63, 418.

CONTRACTS REPUDIATION AS A DEFENCE IN AN ACTION FOR PAYMENTS ALREADY DUE. A contractor agreed with the city of B. to erect a building for a lump sum, payments to be made monthly for seventy per cent of the work done. With the consent of the city the contractor assigned his rights to the plaintiff, at whose request the city held back the monthly instalments. After three payments had become due the contractor repudiated the contract and his surety carried it out. In a suit by the surety against the city, the plaintiff intervened. Held, that the city has a right to declare the deferred payments forfeited and that the surety is subrogated to that right. First Nat. Bank v. City Trust, etc., Co., 114 Fed. Rep. 529 (C. C. A., Ninth Circ.).

In an action of contract the defence of non-performance by the plaintiff is now conceived to be an equitable defence, analogous to failure of consideration. See 14 HARV. L REV. 424, 543. The city's obligation seems to have been indivisible; but, for the convenience of the contractor, monthly payments in advance had been agreed upon. As each payment fell due, the plaintiff as assignee might be regarded as acquiring a vested right to it, of which no subsequent breach could deprive him. See Jackson v. Cleveland, 15 Wis. 107. The right of the city would then be a counter claim or a direct action against the contractor. Since, however, each part payment is not for work already done, but is rather an advance, the mere fact that the contractor's default occurs after several instalments have become due, should not deprive the city of its equitable defence. As the surety is subrogated to all the city's rights, the decision seems correct, assuming that the city had not received substantial performance. CONTRACTS - REPUDIATION BY MAIL WHERE ACTION ACCRUES. The defendant had hired the plaintiff for a definite term as his London correspondent. Before the end of the term the defendant wrote the plaintiff from Naples terminating his employment. This letter the plaintiff received in London. In order to obtain service upon the defendant abroad it was necessary for the plaintiff to bring himself within

the statute by proving, inter alia, that the breach of the contract occurred in England. Held, that there was a complete breach of the contract where the letter was posted abroad. Holland v. Bennett, [1902] 1 K. B. 867 (Eng.).

This result is supported by English authority. Cherry v. Thompson, L. R. 7 Q. B. 573; Matthews v. Alexander, Ir. Rep. 7 C. L. 575; Hamilton v. Barr, 18 L. R. Ir. 297. The American decisions most closely analogous seem to point to the opposite conclusion. It is held that an employee is entitled to his wages until he has received notice of his discharge. North Chgo., etc., Co. v. Hyland, 94 Ind. 448. Only after receipt of the letter can an offer be acted upon. Tinn v. Hoffman & Co., 29 L. T. Rep. N S. 271, 277. The same is true of the retraction of an offer. Henthorn v. Fraser, [1892] 2 Ch. D. 27. It also holds in the case of the revocation of an agent's authority. Robertson v. Cloud, 47 Miss. 208; Sayre v. Wilson, 86 Ala. 151. True, it is generally law that the mailing of the acceptance completes the contract. Dunlop v. Higgins, 1 H. L. Cas. 381; Tayloe v. Merchants Fire Ins. Co., 18 Curtis (U. S. Sup. Ct.) 191. But this is an exception to the general rule that only the communicated intention is effectual; and it does not seem so closely analogous to the principal case as do the instances of revocation of an agent's authority, or of an offer. It would consequently seem to follow that the breach of contract was committed at the time and place of delivery of the letter, and that the plaintiff was entitled to the service desired.

CORPORATIONS -COLLATERAL ATTACK OF STATUS IN EMINENT DOMAIN PROCEEDINGS. — In eminent domain proceedings to condemn a right of way, the defendant alleged that the plaintiff was not a corporation de jure. Held, that the question whether the plaintiff is a corporation de jure or de facto cannot be raised in these proceedings. Postal, etc., Co. v. Oregon, etc., R. R. Co., 114 Fed. Rep. 787 (Circ. Ct., Mont.).

Ordinarily only the sovereign in a direct suit can inquire whether a corporation has strictly complied with the statutory requirements of organization, and thus become a corporation de jure. See THOMPSON, CORP., § 18 50. But when it is sought to enforce the right of eminent domain, the defence that the plaintiff is but a de facto corporation has sometimes been allowed a private person. Orrick School District v Dorton, 125 Mo. 439; see N. Y. Cable Co. v. Mavor, etc., of N. Y. 1, 43. The justification for this exception to the usual rule is to be found in the nature of the extraordinary right of eminent domain. It would seem reasonable that a corporation, in order to take advantage of this delegated prerogative of the sovereign, should be required to be a de jure corporation, assured of permanency; and not merely de facto and liable at any time to dissolution by quo warranto proceedings. See 2 MORAWETZ, CORP., § 768. This view, however, seems not to have been widely considered by the courts; and it must be admitted that the holding in the principal case accords with the weight of authority. National Docks Ry. Co. v. Central R. R. Co., 32 N. J. Eq. 755; Brown v. Calumet, etc., Ry. Co., 125 Ill. 600.

CORPORATIONS MORTGAGE OF FRANCHISES EFFECT OF STATUTE UPON RIGHTS OF PURCHASER AT FORECLOSURE SALE.- The statutes of New York, 1892, c. 688, §§ 2, 3, allow corporations to mortgage their property and franchises, and authorize purchasers at a foreclosure sale to form a corporation which shall enjoy all the rights, privileges, and franchises which at the time of the sale belonged to the mortgagors. The defendant was duly organized under these provisions. During the life of the old company and prior to the foreclosure, the legislature passed an act compelling railroads to issue mileage books upon specified terms. Held, that the defendant is bound by this statute. Minor v. Erie R. R. Co., 171 N. Y. 566.

The statute in question could not be enforced against corporations existing before its passage, because of the Fourteenth Amendment. Lake Shore, etc., Ry. v. Smith, 173 U. S. 684. To bring itself within the scope of this decision the defendart must show that it continues the corporate existence of its predecessor. But the right to be a corporation is generally held not to be included in the term "franchises." and, therefore, not to be transferable by sale or mortgage. State v. Sherman, 22 Oh. St. 411; and see Commonwealth v. Smith, 10 Allen (Mass.) 448; but cf. St. Paul, etc., R. R. Co. v. Parcher, 14 Minn. 297. The statute cannot, in the second place, be resisted on the ground that the constitutional immunity was, by fair implication, reserved to the new company by the statute under which it incorporated. Those terms reasonably implied only the rights, privileges, and franchises received at the hands of the state; and it appears to be a settled rule that courts shall construe statutes most favorably to the state. See Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 561. Finally, the act in question is not void as impairing a contract right of the defendant to receive the franchises which it purchased, undiminished in value, since upon authority no such contract was created. Schurz v. Cook, 148 U. S. 397. The decision in the principal case seems, therefore, unassailable.

CORPORATIONS- OBLIGATION OF BANK DIRECTOR TO WARN DEPOSITOR OF INSOLVENCY.- A bank director, after he had discovered the insolvency of the bank, permitted deposits to be received, without attempting to have the bank closed, or to warn depositors. There was some evidence that he had actually directed the cashier to receive deposits. Held, that he was liable to subsequent depositors for fraud, in that, by his failure to act, he had held out the bank as solvent. Cassidy v. Uhlman, 63 N. É. Rep. 554 (N. Y.).

One may be liable for fraud on the ground of mere nonfeasance, but only where he owed to the party defrauded some positive duty to act. Loewer v. Harris, 57 Fed. Rep. 368. It is difficult to see how a director, by an undertaking between himself and the stockholders to perform the duties of his office, thereby incurs liability to third parties for failure to perform such duties. Accordingly, it has been held that he owes to creditors no duty to use due care in the conduct of the business. Jackson v. Munster Bank, Ir. L. R. 15 Eq. 356. He is, of course, liable to stockholders for negligence on account of his fiduciary relation. Union Nat. Bank v. Hill, 148 Mo. 380. It would seem, then, that defendant's failure to act in this case was not a breach of any duty to the depositors, and consequently no fraud upon them. So far as the decision is based on evidence of a positive act of direction, however, it seems sound. Humphling v. Burr, 59 Mich 294.

CORPORATIONS - RECEIVER FOR RAILROAD - CertifICATES GIVEN PRIORITY TO MORTGAGES. A court of equity authorized its receiver to issue, for the completion of a railroad, certificates with priority of lien, without giving the bondholders an opportunity to be heard Held, that the court has exceeded its power. Bibber-White Co. v. White, etc., Co. et al., 115 Fed. Rep. 786 (C. C. A., Second Circ.). See NOTES, p. 53. DAMAGES MENTAL DISTRESS AS AN ELEMENT OF DAMAGES - DELAY IN SHIPMENT Of Corpse. - The defendant, a common carrier, negligently delayed the shipment of a corpse which it had received from the plaintiff and knew to be that of his wife. The resulting anxiety and necessity of postponing the funeral caused the plaintiff great mental distress, but did him no physical injury. Held, that the plaintiff was entitled to recover for his mental distress as an element of damages. Louisville & N.R R. Co. v. Hull, 68 S. W. Rep. 433 (Ky.).

This case seems a logical application to carriers of the doctrine of the telegraph cases. Chapman v. Western Union Tel. Co., 90 Ky. 265. In actions for breach of contract of marriage, also, mental distress has very generally been allowed as an element of damage. Tobin v. Shaw, 45 Me. 331. In such cases the probability of great mental distress resulting from breach of the contract is no stronger than in the principal case, while all the practical objections apply as well to the former as to the latter. Unlike the ordinary marriage contract case, the wrong here was negligent only; yet damages are often allowed for mental suffering occasioned by negligence, as when concurrent with physical injury, or in actions for libel or slander negligently published. Carpenter v. Mexican Nat. R. R. Co., 39 Fed. Rep 315; Morrison v Ritchie & Co., 39 Scot. L Rep. 432; 112 L. T. 472. But notice to defendant that his negligence would probably cause mental distress is essential to the plaintiff's right of action. Nichols v. Eddy, 24 S. W. Rep. 316 (Tex). The case accords with what little authority has been found. Hale v. Bonner, 82 Tex 33; Wells, Fargo & Co.'s Express v. Fuller, 35 S. W. Rep 824 (Tex.). It would follow from a contrary holding that only nominal damages could be recovered for the loss of a corpse, since there is no property in a dead body. 2 BL. COM. 429; Williams v. Williams, 20 Ch. D. 659.

EQUITY INJUNCTION AGAINST BREACH Of Contract MUTUALITY. - The defendant contracted to render personal service as a ball player exclusively to the plaintiff, who was to have the right to renew the contract during the three following seasons and to terminate the whole engagement upon ten days' notice The plaintiff brought a bill to restrain the defendant from rendering service to others in breach of his contract. Held, that the contract is not lacking in mutuality and that the threatened breach will be enjoined. Phila. Ball Club v. Lajoie, 51 Atl. Rep. 973 (Pa.); contra, Brooklyn, etc., Club v. McGuire, 116 Fed. Rep. 782. See BOOKS AND PERIODICALS, p. 72.

EQUITY PURCHASE FOR VALUE WITHOUT NOTICE ASSIGNMENT OF JUDGMENT THROUGH FRAUD. The plaintiff was induced by fraud to assign a judgment to B, who thereupon sold it to the defendant, as purchaser for value without notice. A bill was filed to have the assignment set aside. Held, that the defendant took subject to all the equities existing against his assignor. Luecht v. Pearson, 101 Ill. App. 236.

It is usually thought that the authorities are in hopeless conflict on this question. In England there is some confusion. See Ashwin v Burton, 32 L. J. Ch. 196; cf. Cockell v. Taylor, 15 Beav. 103. But in America the weight of authority seems strongly